Confidentiality

10th August 2023

Confidentiality

Local authorities and public bodies in Scotland spend public money and provide services to the public. The public cannot, however, hold local authorities and public bodies to account unless they are open and transparent about their work, performance and how they use their resources.

But does this mean that, as constituents, service users and stakeholders, we should expect local government councillors and those appointed, nominated or elected to the boards of public bodies to disclose all information about decisions their public bodies are making and work that is being undertaken?

Well, no. Not all information.

The Codes of Conduct for Councillors and Members of Devolved Public Bodies in Scotland make it clear that certain information must be kept confidential. A councillor or member can be in breach of their Code, and find themselves facing a sanction (including suspension or disqualification), if they share confidential information. 

The Codes note that confidential information will be disclosed to councillors or board members for their use in that capacity, in their roles as councillors or members. It must not be disclosed or in any way used for personal or party-political advantage or in such a way as to discredit the council or public body.

So, what type of information is confidential?

Categories of information that would be considered confidential include:

• commercial information (such as information relating to a contract or a contractor’s business);
• personal or sensitive information (such as information relating to the employment or health of a council or public body employee);
• information that is deemed by statute to be confidential;
• information discussed in closed or private sections of meetings;
• legal advice provided either by employees or external legal advisers; and
• information received as a result of a relationship where there is an expectation of confidence (such as between a councillor and a constituent).

Sometimes the confidential nature of the material will be explicit, such as if the document is marked ‘confidential’. In other cases, it will be clear, from the nature of the information or from the circumstances in which it was provided, that it is confidential.

Information can also be confidential in cases where a council or public body employee, or a member of the public, has asked the councillor or member to treat it as confidential.

Councillors and members are also data users and must comply with data protection legislation and their council or public body’s data protection policies when handling information. Information provided to them must only be used for the purpose for which it was provided.

The confidentiality requirements apply even in instances where the councillor or board member thinks that the information should be publicly available.

Sometimes it can be a matter of timing – in many cases, the information may eventually be released into the public domain. However, councillors and board members must respect the requirement for confidentiality even if they consider the information in question should be released at an earlier stage.

Why must certain information be kept confidential?

There are a number of reasons why certain information must be kept confidential. Some information may be deemed confidential in order to protect the reputation or rights of others (for example, to protect an individual’s right to privacy).

In some cases, confidentiality applies because the council or public body need to be able to ensure that its employees are fully briefed and are in a position to manage external communications (such as enquiries from the public) effectively before the information is released into the public domain. A failure to maintain the confidentiality of this type of information can result in undue and unnecessary concern and confusion among the public, which can erode public trust and confidence in the council public body.

Maintaining confidentiality can also help promote good decision-making as it can create a space where views and ideas can be expressed and discussed freely. Employees, councillors and board members might not feel comfortable about making suggestions, asking questions and expressing views, particularly on potentially difficult or sensitive confidential matters if they are worried that a colleague might leak these to the public or press.

A failure to maintain confidentiality can have both financial and reputational implications for local authorities and public bodies, as entities. Certain breaches could result in a loss of public trust and confidence and could also led to legal action being brought against the council or public body.

Examples

A member of a public body disclosed confidential information relating to the health of an employee of the public body to a third party. It was found that the member had breached their Code by disclosing to a third-party information about the employee which was private, personal and sensitive and that was, by its very nature, confidential.

A councillor disclosed, in two Facebook posts, sensitive information about his Council’s response to the Covid-19 pandemic. The information in question had been provided by council employees at private briefings and it was evident the information was intended to remain confidential until the Council had prepared its public communications. This was considered especially important given the nature of the communications, which could have caused undue fear or alarm. It was found, therefore, the councillor had breached the confidentiality provisions of the Councillors’ Code.

A councillor disclosed, to the media, confidential information about proposals for the closure of certain leisure facilities. The councillor had received the information as a member of a working group, and it was clear from the context in which the information had been provided that it was to be treated as confidential. Furthermore, the information was disclosed a week before an upcoming election and, therefore, in addition to having breached the Code by knowingly and deliberately disclosing confidential information, it was found that the councillor breached the provision in the Code that state confidential information should not be used for personal or party-political advantage.